This report is the result of an international fact finding mission conducted in Gaborone, the capital city, from 14 to 21 April 2006 and organised with the help of DITSHWANELO. The delegation was able to meet with several representatives of the authorities, law professors, lawyers and representatives of human rights organisations.
The mandate of the mission was to inquire into the administration of capital punishment in Botswana, including the conditions of detention on death row. The objective was also to assess the possibility of Botswana abolishing the death penalty, or adopting a moratorium on capital punishment, as a first step towards its abolition, and to issue recommendations in that regard.
Botswana is one of the retentionist countries in Southern Africa, together with Zimbabwe, Swaziland and Zambia. The President of the Republic of Botswana, Mr Festus Mogae, is a confessed retributionist. Neither he nor any previous president has exercised the prerogative of mercy.
According to the Botswana Penal code, four crimes retain mandatory death sentences. These are murder, treason, instigating a foreigner to invade Botswana and committing assault with intent to kill in the course of piracy. FIDH and DITSHWANELO consider the mandatory nature of the sentence in these cases to be in contradiction with Section 7 (f) of the Resolution 2005/59 of the United Nations Human Rights Commission which urges all States maintaining the death penalty to « ensure that [...] the death penalty is not imposed [...] as a mandatory sentence ». It is also violates Article 6.1 of the International Covenant on Civil and Political Rights (ICCPR) in so far as the mandatory death sentence can amount to arbitrary deprivation of life.
Executions in Botswana are by hanging. They are not announced in advance and so take place unexpectedly. The secrecy of the executions was verified just a few days before the arrival of the FIDH mission, when on April 1, 2006, Mr Oteng Modisane Ping, convicted on two counts of murder, was executed. This brought the number of executions to 39 people since independence in 1966. Neither his family nor his lawyer were aware of Ping’s imminent execution, despite the fact that his mother had unsuccessfully asked to see him on the day before the execution. FIDH and DITSHWANELO consider the fact that the condemned person is not able to see his or her family and lawyer before their execution, and that the death warrant is transmitted to him or her only 48 hours before the execution, constitute inhuman and degrading treatment. This procedure clearly fails to respect the human dignity of both the family and the prisoner, and violates Articles 7 and 10.1 of the ICCPR.
The quasi-judicial nature of the Advisory Committee on the Prerogative of Mercy or Clemency Committee as well as its composition and opaque procedures are also matters of concern for our organisations. The negative outcome of the clemency process is only communicated to the condemned prisoner when he or she is served with the death warrant before execution.
FIDH and DITSHWANELO were also able to note that the trials were not always conducted in a fair manner, notably because of the nature of the legal aid system in Botswana, according to which every person charged with an offence for which the penalty is death, is entitled to a state-funded lawyer. Unfortunately the amount paid to these lawyers is minimal and often, the result is that most pro deo cases are handled by lawyers who lack the experience, resources and commitment to handle such serious matters.
A further objective of the mission was to document the conditions of detention, both of death row prisoners and of persons awaiting trial. However, the authorities refused to grant FIDH access to prisons. FIDH’s request for a permit to visit Lobatse and Gaborone maximum security prisons were rejected, on the grounds that there were no prisoners on death row in Botswana at the time of the mission. FIDH reiterated its request to meet with other prisoners, but as of today it has not received a response. As a result FIDH and DITSHWANELO were unable to verify that the conditions in Botswana’s prisons comply with international standards and, in the absence of any public information, remain deeply concerned about the fundamental rights of all detainees.
FIDH and DITSHWANELO consequently issue the following preliminary recommendations to the authorities of Botswana :
Adopt a moratorium on the death penalty as a first step towards its abolition;
Abolish mandatory death sentences, in accordance with international human rights law;
Ensure transparency in the composition and the proceedings of the Clemency Committee which deals with the prerogative of mercy;
Make public statistics on the number of death sentences pronounced and executed, every year, differentiated by age, gender, charges and allow for an informed public debate on the issue;
Conduct sensitization campaigns to make the population of Botswana aware of the necessity to abolish the death penalty;
Ratify Protocol II to the International Covenant on Civil and Political Rights abolishing the death penalty;
Support a possible initiative of the African Commission for the adoption of a Protocol to the African Charter abolishing the death penalty;
Guarantee the right to a fair trial in accordance with the regional and international human rights instruments ratified by Botswana;
Ensure access of independent non governmental organisations to prisons in order to ensure effective monitoring of conditions of detention.